Why judges are in control of N.C. politics

In civics class, you learn a few simple phrases about the three branches of government. The legislature makes the laws. The executive branch carries out the laws. And the judicial branch interprets the laws.

You’d be forgiven for getting these mixed up in following North Carolina politics lately.

We’re nearly two years into the battle between Gov. Roy Cooper and the General Assembly over their separation of powers. As this conflict between Democrats and Republicans comes to a head, the judiciary is rising in prominence.

Judges are making key decisions right now that are determining what voters will see on their ballots and even whether we’ll be able to vote for our congressional representatives this November.

It’s hard enough for folks to stay informed about who represents them in the state legislature. Keeping up with judges is even more difficult, and the men and women on the bench are even less known.

Why are the courts so powerful right now?

North Carolina’s governor is a Democrat. The General Assembly has a Republican supermajority.

Without having any power to force concessions through debate, Democrats are frequently taking the only legal means at their disposal to try to block policies they dislike: Lawsuits. Led by Gov. Roy Cooper, Democrats have taken to suing to challenge laws passed by the General Assembly.

That has set up the court system as the referee between Democrats and Republicans.

There’s a lot of unsettled case law here. The U.S. Supreme Court hasn’t made a decision about whether partisan gerrymandering is OK, for example.

Laws also sometimes leave a lot to interpretation. For example, the law says that voters need to have proposed constitutional amendments fairly presented to them. That means it’s up to the courts to determine whether the text on the ballot is misleading or not.

Don’t count on Merriam-Webster to help you there.

Which courts are making the big decisions? And what are these “three-judge panels” I keep hearing about?

Every case starts somewhere, and there are differences in where challenges go depending on what they’re about.

In general, lawsuits challenging Republicans begin in either Superior Court (state-level) or the U.S. District Court.

General Assembly law challenges

A 2014 law requires most1If you’re a legal nerd, the reason it’s “most” is because facial challenges go to the three-judge panel, and “as applied” challenges go to a single judge. Here’s a good breakdown on that from the North Carolina Bar. lawsuits that seek to challenge a law passed by the General Assembly to go in front of a panel of three judges convened under the Superior Court of Wake County.

Who are these judges? To create this panel, the Chief Justice of the N.C. Supreme Court — currently Republican Mark Martin — taps three resident superior court judges, one from each of the three regions of the state.

How do they get their jobs? Superior Court judges are elected by districts and serve eight-year terms. But every six months, they rotate between districts within their division.

It’s worth noting that only resident Superior Court judges are eligible to be on these three-judge panels. “Special” Superior Court judges that are appointed by the governor are not eligible.

Who has the advantage? Republicans have the advantage here since the Chief Justice is in that party.

Federal redistricting challenges

Sometimes redistricting cases are challenged in state court, and those follow the rules set out above. But the highest-profile redistricting cases are being handled in federal court.

Who are these judges? Generally, these panels are composed of two judges from the District Court and one appellate judge from the 4th Circuit Court of Appeals, which covers North Carolina. The Court of Appeals gets to pick the panel.

There are 17 total judges in the three District Courts in North Carolina. Four were appointed by Democrats and 13 by Republicans.

The 4th Circuit Court of Appeals has 18 judges. Ten were appointed by Democrats, and eight by Republicans.

In the case governing North Carolina’s congressional districts, these three judges are James Wynn (Court of Appeals), and William Osteen and Earl Britt (U.S. District Court).

How do they get their jobs? All of these judges are appointed by the president of the United States to lifetime terms. The president generally picks somebody with similar political leanings.

Who has the advantage? Democrats have the advantage here because they control the 4th Circuit Court of Appeals.

Who has the final say?

Pretty much every challenge’s initial decision gets appealed. These courts generally have the final say.

N.C. Supreme Court

On way or another, most challenges in state court end up at the North Carolina Supreme Court.

Who are these judges? There are 7 justices on the court. Democrats currently hold a 4-3 advantage.

How do they get their jobs? State Supreme Court justices are elected statewide to eight-year terms. In many cases, they are first appointed to fill vacancies by the governor and then run for election.

Who has the advantage? Democrats, with a 4-3 majority.

Fourth Circuit Court of Appeals

We’ve already touched on this court. This court also generally hears cases in panels of three judges, and sometimes appeals court judges sit on the District Court three-judge panels (like Judge Wynn). But they’re of course very different.

Who are these judges? These 18 judges are based out of Richmond, Virginia and cover a district encompassing the Carolinas, Virginia, West Virginia and Maryland.

Three of them are from North Carolina. Two are Democrats, one is a Republican.

How do they get their jobs? Lifetime appointment by the president of the United States.

Who has the advantage? Democrats, 10-8.

U.S. Supreme Court

Sometimes the SCOTUS will decide to take a case, but they don’t have to. If they don’t, the appeals court decision stands. This court can also decide to make a very limited ruling, or they can set nationwide precedent.

Who are these judges? There are generally 9 justices, but currently, there are eight after the retirement of Justice Anthony Kennedy in July 2018. Four were appointed by Democrats, and four by Republicans.

How do they get their jobs? Lifetime appointment by the president of the United States.

Who has the advantage? Tied up right now, pending President Donald Trump’s appointment of Brett Kavanaugh.

But judges are apolitical, right?

North Carolina’s judges apply the law impartially and fairly.

But as we described at the beginning of this piece, many laws are broad enough for reasonable interpretation in multiple directions. Oftentimes, the interpretation a judge picks depends on his or her political leanings.

This isn’t always the case. You’d be surprised at how rarely the N.C. Supreme Court, for example, has split solely along party lines.

But both Democrats and Republicans are well aware of the political leanings of the state’s judges.

This is why you’ll see Republicans appealing cases to the N.C. Court of Appeals, which has a Republican majority. Meanwhile, Gov. Cooper will try to bypass the Court of Appeals and get cases sent straight to the N.C. Supreme Court.

Right now, Democrats have a distinct advantage when it comes to the judges that are deciding on political issues in North Carolina. They control the levels that have the most power or the final say most often. That’s why you’re seeing so many lawsuits and legal challenges, leading Republicans to coin the phrase “Sue until N.C. is blue.”

I haven’t seen any comprehensive analysis of how the state panels of Superior Court judges have ruled. But in several recent cases, these panels have dismissed complaints from Gov. Roy Cooper only to be overruled on appeal.

The three-judge panel handling the congressional districts has a Democratic tilt, and this panel has tended to side against the Republican-led General Assembly.

Wynn was appointed by President Barack Obama. Britt was appointed by President Jimmy Carter. Both are Democrats.

Osteen was appointed by President George H.W. Bush, a Republican.

What happens next?

Their court ruling last week that threw the 2018 elections into turmoil has also launched a backlash against the power of the judges.

The Wall Street Journal editorial board published a scathing piece last week calling the decision a “coup” and described the situation as “Liberal judges hijack redistricting to abet a Democratic House.”

The race for North Carolina Supreme Court is already a hot one. Expect debates over who gets to be a judge to continue to be vitally important.